06 August 2009

Punishing Corruption In Politics

William J. Jefferson was a Democratic Congressman from New Orleans. He is African American.

He was prosecuted following an investigation by the FBI (in an investigation that spanned a Republican and a Democratic Presiential administration) for corruption charges during his term of service. The trial took six weeks and the jury deliberated for five days. Prosecutors alleged that "from 2000 to 2005, Mr. Jefferson sought hundreds of thousands of dollars in bribes from a dozen companies involved in oil, communications, sugar and other businesses, often for projects in Africa. . . . [he] used his position as a member of the House Ways and Means trade subcommittee to promote the companies’ ventures . . . . [he] actually received less than $400,000[.]"

He was convicted in a federal court in Virginia yesterday of 11 of 16 counts of "bribery, racketeering and money laundering. He was acquitted of obstruction of justice and violating the Foreign Corrupt Practices Act, which makes it illegal to bribe foreign government officials." He is 62 years old, and the federal guideline sentence for his crime is more than 20 years.

He lost his bid for re-election in 2008, largely because the case was pending. But, the House did not expel him, which it had the power to do with a two-third majority, and he did not resign from office.

The fact that the FBI found $90,000 that had been delivered to Jefferson as bribe money in his freezer wrapped in aluminum foil doesn't say much for the banking practices of the member of the House Ways and Means Committee, which writes the nation's tax laws.

The case also made constitutional history on a separation of powers issue:

F.B.I. agents raided Mr. Jefferson’s Congressional office in May 2006, the first time the bureau had searched a Congressional office. The raid was denounced by lawmakers in both parties who said that the Justice Department, through the F.B.I., had committed an unconstitutional intrusion on Congressional independence.

A federal judge upheld the raid, but an appeals court ruled that it was constitutionally flawed and that some documents should be returned to Mr. Jefferson. The Supreme Court let that ruling stand.

In my view, this is a case where the system worked. The FBI's director is appointed for a fixed term; he does not serve at the pleasure of the President. This insulated key investigations of national importance form political meddling. A genuinely corrupt politican was convicted of crimes for his conduct after a thorough examination of the case at trial by a jury.

Corrupt politician should be prosecuted, regardless of party. The federal system has a bias towards trying to unstate misconduct by members of your own political party, because incumbents are usually easily re-elected, while open races tend to be more competitive. But, criminal and ethnical misconduct undermine the quality of governance and may candidates unelectable.

I personally believe that the Democrats would have been wise to get behind a proposal to expel Jefferson from the House themselves before the 2008 election. I also favor the Colorado system, where an individual legislator's resignation, removal from office or death leads to a partisan vacancy committee appointment that doesn't change the balance of power, rather than putting the partisan balance of the body as a whole at stake. In individual's personal flaws don't mean that his or her constituents favor the politics of the other party. The U.S. has long recognized this in the Presidency, where we moved to the joint election of the President and his understudy, the Vice President, long ago.

I am not a big fan of the criminalization of politics. Campaign finance laws and laws concerning the conduct of campaigns shouldn't be crimes, even though sometimes they are appropriate and should carry penalties. Criminal libel laws likely shouldn't exist, even if there is a role for narrow constitutionally bound civil defamation actions (although I have doubts about rare cases that are direclty political, such as a recent candidate-candidate defamation judgment in Nevada).

But, this doesn't mean that we shouldn't be vigilant in prosecuting abuse of political offices for personal economic gain.

Indeed, I support the basic idea that most voters thought that they were backing when they enacted Colorado's Amendment 41. This idea was that state elected officials and senior political appointees should not be allowed to receive gifts unless it is clear that they would have been given even if the person did not hold public office, and that gift giving to elected officials and senior political appointees should not be a permitted part of our political culture.

The need for a citizen initiative to regulate state elected official's ethics was clear. They face a conflict of interest if they are asked to regulate themselves. But, flaws in the drafting of Amendment 41 led its backers to take a position, ultimately accepted by the courts, that implausibly read the Amendment so that its gift ban scope was almost entirely duplicative of the state's criminal bribery laws, rather than constituting the true gift ban that was intended.

Amendment 41's problem was not that it contained a gift ban, but that the gift ban was overreaching. Amendment 41 included governmental bodies like public universities and local governments, which the state legislature was in a good position to regulate without facing a conflict of interest. Likewise, Amendment 41 inexplicably covered all employees of state government, rather than leaving employees within the civil service system, who face an entirely different regime designed to insulate them from improper political pressure, alone. Article XII, Section 13 of Colorado's Constitution, establishing the state personnel system, leave the ranks of political appointees in Colorado very thin.

The only state employees who are exempt from the personnel system in the excutive branch are:

1. State elected officials

2. Constitutional state officers not otherwise identified, including up to twenty department heads.

3. The Governor and Lieutenant Governor's offices whose functions are confined to the administration of those offices.

4. Deputies the Secretrary of State, State Treasurer and Attorney General, and attorneys at law service as assistant attorney general.

5. Employees of the legislative and judicial branches.

6. Members of board and commissions including: the Public Utilities Commission, the Industrial Commission, the State Board of Land Commissioners, the Colorado tax commission, the State parol board, the state personnel board and other boards and commissions compensenated solely upon a per diem and expense reimbursement basis.

7. Faculty members and senior administrators of educational institutions and other "departments not reformatory and charitable in character" (e.g. state hospitals).

8. Students and inmates.

Amendment 41 could easily have exempted people in the state personnel system, and people in categories 7 and 8 above, and could easily have narrowed the circumstances in which family members of covered people were considered to be within the scope of the gift ban. There is no evidence of pervasive and worrisome corruption in Colorado by personnel system employees, at state colleges and universities, and in state hospitals.

This would have exempted something on the order of 97% of the people covered by Amendment 41, and even a narrower net would have been effective to deal with the perceived problem.

Making the de minimus exception to the ban of $50 apply to lobbyists (for whom there is no exception) perhaps on a per year basis, to prevent a daily parade of small gifts, would have eliminated more of the silly side of the law, which technically prohibits brief car rides or free tissues offered by lobbyists to leigslators if read literally.

Requiring covered people to reimburse the state for, or give to the state gifts received by these officers, which is how the gift ban in the federal executive branch works, would be a non-fault seeking, narrow inquiry that could keep government clean without the destructive inquiries that go into bribery cases, which even when blatant, as in the Jefferson case, take immense resources.

Private benefit from public office is a path to corruption. But, unless it rises to the kind of quid pro quo of taking public acts for private gain in a way that can be traced, is less search inquiry with non-punitive consequences makes more sense.